Friday, April 18, 2014

Child Pornography, RoundUp and the Franks hearing

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After the federal government charged Paul Case with
distribution and possession of child pornography in violation of 18 U.S. Code
§§ 2252(a)(2) and 2252(a)(4)(B), he

[moved, pursuant] to Franks v.Delaware, 438 U.S. 154 (1978), to suppress evidence obtained pursuant
to a search warrant, arguing that the agent who applied for the warrant misled
the issuing magistrate judge by failing to disclose the FBI's use of an
automated computer program to discover child pornography files on defendant's
computer available for download through a peer-to-peer (`P2P’) file sharing
network.

[s]earch warrants enjoy a presumption
of validity. See Franks v. Delaware, supra. . . . A defendant
is entitled to an evidentiary hearing to examine the sufficiency of a search warrant
only if he makes a `substantial preliminary showing’ that the warrant
application contained a materially false statement made by law enforcement with
deliberate or reckless disregard for the truth and that the false statement was
necessary for the finding of probable cause. U.S. v. Williams, 718
F.3d 644, 649 (U.S. Court of Appeals for the 7th Circuit 2013). . .
.

A defendant may also challenge an
affidavit by demonstrating that the affiant intentionally or recklessly omitted
material information. U.S. v. Hoffman, 519 F.3d 672 (U.S.
Court of Appeals for the 7th Circuit 2008).

The
court need not hold a Franks hearing based on conclusory or
generalized assertions. See U.S. v. Currie, 739 F.3d 960 (U.S.
Court of Appeals for the 7th Circuit 2014); United States v.
Taylor, 154 F .3d 675, 680 (U.S. Court of Appeals for the 7th
Circuit 1998). Rather, the defendant must offer direct evidence of the
affiant's state of mind or inferential evidence that the affiant had obvious
reasons for omitting facts in order to prove deliberate falsehood or reckless
disregard. U.S. v. Souffront, 338 F.3d 809 (U.S. Court of
Appeals for the 7th Circuit 2003).

Finally, if the allegedly false
statements are excluded -- or the omitted facts are included -- and the
affidavit still supports a finding of probable cause, no hearing is
required. U.S. v. Souffront, supra. . . . See also Betker v. Gomez, 692
F.3d 854, 862 (U.S. Court of Appeals for the 7th Circuit 2012) (`We
eliminate the alleged false statements, incorporate any allegedly omitted
facts, and then evaluate whether the resulting ‘hypothetical’ affidavit would
establish probable cause’).

U.S. v. Case, supra.
If you would like to read about the process a U.S. officer uses to get a search warrant, check out this source. And if you are interested, you can read more about the process of obtaining a
Franks hearing here.

The judge then began his analysis of Case’s arguments, which
he outlined here:

[Case’s] argument has evolved
throughout the course of these proceedings. In his original objection,
supporting materials, and proposed statement, [h]e appeared to make two claims:
(1) that the agent lied about the existence of the online covert employee
(OCE5023) in order to conceal the use of RoundUp; and (2) that RoundUp allows
law enforcement to invade the private spaces of a suspect's computer.

In his reply brief in support of the
objection, he appears to abandon the first claim and raises a third—that
RoundUp may not be sufficiently reliable. I address each of these three claims
in turn.

U.S. v. Case, supra.

The judge then addressed all three arguments, in order:

Citing other search warrant
applications in this district, [Case] contends an FBI directive prevents the
disclosure of RoundUp in such affidavits and requires its use be concealed by
alleging the participation of a fictitious online covert employee.

In its
response to the objection, the government indicates that OCE–5023 is a real
person, whose name is not disclosed given his/her role in covert
investigations; the government denies any deception in the warrant affidavit.

[Case]
presents no evidence refuting the government's assertion; indeed, in his reply
brief he appears to accept it, which dooms his request for a Franks hearing
based on deception. . . .

Instead,
he indicates that RoundUp may have been running unattended at the time of the
downloads from his computer and argues that an evidentiary hearing is required
to determine the reach of this program, how it was used in his case, and
whether it is reliable.

Relying on the articles written by
RoundUp's creators, [he] contends that the program surreptitiously enters the
private spaces of a target's computer and inserts data into those private
spaces. I cannot find any support for that claim in the articles. The authors
state: `No unauthorized access to the target's machine is required; tags are
inserted in the normal function of a system.’ . . .

The authors also suggest that the hash
value of the tag be provided to the magistrate as part of the search warrant
application . . . which controverts [Case’s] claim that agents using the
program are instructed to conceal their activities. The articles provide no
non-speculative basis for believing that RoundUp may be used to invade private
spaces. Nor do the articles discuss tagging in relation to the `Ares’ P2P
network, which was used in the present case.

Based on materials defendant previously
submitted, it appears that RoundUp for Ares was developed by the Ontario
Provincial Police, rather than the computer science professors who wrote the
articles upon which [Case] now relies. . . .

In any event, even if RoundUp could be
used improperly, [he] makes no claim that the government invaded the private
spaces of his computer, to insert tags or to search for
evidence, despite the fact that he had forensic experts examine the computer. He admits that he does not know whether tagging was even being
used at the time his computer was accessed

[Case] asks for a hearing so the court
can determine whether agents used the program to enter the unshared space on
his computer, but the district court is required to hold a hearing on a motion
to suppress only if the defendant's allegations are sufficiently definite,
specific, non-conjectural, and detailed. U.S. v. Curlin, 638
F.3d 562 (U.S. Court of Appeals for the 7th Circuit 2011).

Given the speculative nature of [Case’s]
claims, there is no need to hold a hearing and no basis for concluding that illegally
obtained evidence was used to obtain the warrant. . . .

U.S. v. Case, supra (footnotes
omitted).

[Case] notes that, according to the
search warrant affidavit, OCE5023 downloaded files from [his] computer between
2:11 a.m. and 3:33 a.m. on November 25, 2012. [He] presents an affidavit from
his computer expert, who indicates that the agent-affiant admitted to him that
the computer program was running unattended during the time of the downloads. .
. .

Even assuming that the program was running unattended
at the time of the downloads, [Case] provides no authority in support of his
claim that this precludes a finding of probable cause.

Nor does he claim that
the FBI failed to confirm that the material downloaded was, in fact, child
pornography. The warrant affidavit includes a detailed description of three of
the files. . . .

This is not a situation where a computer program
downloaded material believed to be contraband (based on, say, a keyword search
or hash values) and no human being looked at the material before a warrant was
sought.

The affidavit further indicates that, after the
images were downloaded and confirmed to be child pornography, the FBI
identified the IP address from which the images were downloaded and, pursuant
to a subpoena to the internet service provider, identified defendant as the
subscriber.

This process is sufficiently reliable to support the issuance of
the warrant. . . .

Finally, I
decline to hold an evidentiary hearing to explore the reliability and
capabilities of RoundUp. Hearings on motions to suppress are not granted as a
matter of course. U.S. v. Villegas, 388 F.3d 317 (U.S. Court of
Appeals for the 7th Circuit 2004).

District courts are required to conduct
evidentiary hearings only when a substantial claim is presented, there are
disputed issues of material fact that will affect the outcome of the motion,
and the defendant's allegations are sufficiently specific and
non-conjectural. . . . . Here, [Case] offers only speculation about
RoundUp. Accordingly, there is no basis for holding a hearing.

U.S. v. Case, supra.

The judge therefore denied Case’s motion to suppress.U.S. v.
Case, supra. The article you can find here, discusses the use of
RoundUp in child pornography investigations.